The Privacy Conundrum

How you feel about defrocked Assemblyman Steven Brooks and the Nevada Policy Research Institute may depend on the emanations from your penumbra.

Wait. Don’t call the censor.

At issue is privacy, a word absent from the U.S. Constitution. In 1890, future U.S. Supreme Court Justice Louis Brandeis defined it legally in an important article, and in 1965 his high-court successor, William O. Douglas, gave it expression in a judicial opinion. In Griswold v. Connecticut, which overturned a state prohibition on selling contraceptives, Douglas wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that give them life and substance.”

Lest you think Douglas was a frustrated porn writer, he argued, “Various guarantees create zones of privacy,” such as the First Amendment’s freedom of association, the Third’s ban on housing soldiers, the Fourth’s protection against “unreasonable searches and seizures,” the Fifth’s self-incrimination clause and the Ninth’s assurance that other rights may exist beyond the Bill of Rights. And even if you disagree about the right to privacy, no one can dispute that those other rights exist, although we certainly debate their meaning and reach.

Brooks and NPRI both figure in this discussion because of requests for information.

Fourteen representatives of Nevada’s media have demanded that the Assembly release the information it used as part of an investigation that culminated in Brooks’ expulsion. Attorney Don Campbell, representing the media, allowed for medical records to be withheld (since federal law guarantees the privacy of health records), and the Las Vegas Review-Journal’s lawyer, Mark Hinueber, asked for release of “the non-privileged portions of the report.” Assembly Majority Leader William Horne, himself an attorney, referred them to the Legislative Counsel Bureau.

The report includes medical information about Brooks, and he clearly has a medical problem of some kind. Isn’t it possible to argue that anything in the report could be part of federal health privacy laws? Probably not, but privacy law, like most other forms of law, is in constant flux.

The media are correct about our right and need to know. But the public’s right to know ends at medical privacy. There’s also a question of when that quest for knowledge becomes unnecessarily sensational or destructive.

Meanwhile, NPRI—Nevada’s powerful conservative think tank—is entangled in a privacy dilemma of its own. It wants the school district to provide email addresses for Clark County’s 18,000 or so teachers. NPRI claims they are public record. The school district says no, those addresses are part of employees’ personnel records, and the directory isn’t a public record as defined by Nevada’s public records laws.

Since NPRI—a think tank that too seldom thinks—could readily have gone into school websites and gotten almost every email address, it’s easy to dismiss its latest spasm. But even a stopped clock is right twice a day. A Las Vegas Sun report quotes school-district policy: “Electronic mail is not private. As with written communication, users should recognize there is no expectation of privacy for electronic mail.”

This may explain why wise educators in this state have private email addresses. While the law on this subject also evolves, Nevada long has had a respect problem: right-wing groups such as NPRI have no respect for state government, and state government long has displayed no respect for the rights of its employees.